Hudgens v. National Labor Relations Board


No. 74-773 Argued: October 14, 1975 --- Decided: March 3, 1976
MR. JUSTICE STEWART delivered the opinion of the Court.

A group of labor union members who engaged in peaceful primary picketing within the confines of a privately owned shopping center were threatened by an agent of the owner with arrest for criminal trespass if they did not depart. The question presented is whether this threat violated the National Labor Relations Act, 49 Stat. 449, as amended 61 Stat. 136, 29 U.S.C. 151 et seq. The National Labor Relations Board concluded that it did, 205 N.L.R.B. 628, and the Court of Appeals for the Fifth Circuit agreed. 501 F.2d 161. We granted certiorari because of the seemingly important questions of federal law presented. 420 U.S. 971. [p509]


The petitioner, Scott Hudgens, is the owner of the North DeKalb Shopping Center, located in suburban Atlanta, Ga. The center consists of a single large building with an enclosed mall. Surrounding the building is a parking area which can accommodate 2,640 automobiles. The shopping center houses 60 retail stores leased to various businesses. One of the lessees is the Butler Shoe Co. Most of the stores, including Butler's, can be entered only from the interior mall.

In January, 1971, warehouse employees of the Butler Shoe Co. went on strike to protest the company's failure to agree to demands made by their union in contract negotiations. [n1] The strikers decided to picket not only Butler's warehouse, but its nine retail stores in the Atlanta area as well, including the store in the North DeKalb Shopping Center. On January 22, 1971, four of the striking warehouse employees entered the center's enclosed mall carrying placards which read: "Butler Shoe Warehouse on Strike, AFL-CIO, Local 315." The general manager of the shopping center informed the employees that they could not picket within the mall or on the parking lot and threatened them with arrest if they did not leave. The employees departed, but returned a short time later and began picketing in an area of the mall immediately adjacent to the entrances of the Butler store. After the picketing had continued for approximately 30 minutes, the shopping center manager again informed the pickets that, if they did not leave, they would be arrested for trespassing. The pickets departed.

The union subsequently filed with the Board an unfair labor practice charge against Hudgens, alleging interference with rights protected by § 7 of the Act, 29 [p510] U.S.C. § 157. [n2] Relying on this Court's decision in Food Employees v. Logan Valley Plaza, 391 U.S. 308, the Board entered a cease and desist order against Hudgens, reasoning that, because the warehouse employees enjoyed a First Amendment right to picket on the shopping center property, the owner's threat of arrest violated § 8(a)(1) of the Act, 29 U.S.C. § 158(a)(1). [n3] Hudgens filed a petition for review in the Court of Appeals for the Fifth Circuit. Soon thereafter this Court decided Lloyd Corp. v. Tanner, 407 U.S. 551, and Central Hardware Co. v. NLRB, 407 U.S. 539, and the Court of Appeals remanded the case to the Board for reconsideration in light of those two decisions.

The Board, in turn, remanded to an Administrative Law Judge, who made findings of fact, recommendations, and conclusions to the effect that Hudgens had committed an unfair labor practice by excluding the pickets. [p511] This result was ostensibly reached under the statutory criteria set forth in NLRB v. Babcock & Wilcox Co., 351 U.S. 105, a case which held that union organizers who seek to solicit for union membership may intrude on an employer's private property if no alternative means exist for communicating with the employees. But the Administrative Law Judge's opinion also relied on this Court's constitutional decision in Logan Valley for a "realistic view of the facts." The Board agreed with the findings and recommendations of the Administrative Law Judge, but departed somewhat from his reasoning. It concluded that the pickets were within the scope of Hudgens' invitation to members of the public to do business at the shopping center, and that it was, therefore, immaterial whether or not there existed an alternative means of communicating with the customers and employees of the Butler store. [n4]

Hudgens again petitioned for review in the Court of Appeals for the Fifth Circuit, and there the Board changed its tack and urged that the case was controlled not by Babcock & Wilcox, but by Republic Aviation Corp. v. NLRB, 324 U.S. 793 a case which held that an employer commits an unfair labor practice if he enforces a no-solicitation rule against employees on his premises who are also union organizers, unless he can prove that the rule is necessitated by special circumstances. The Court of Appeals enforced the Board's cease and desist order, but on the basis of yet another theory. While acknowledging that the source of the pickets' rights was § 7 of the Act, the Court of Appeals held that the competing constitutional and property right considerations discussed in Lloyd Corp. v. Tanner, supra, "burde[n] the General Counsel with the duty to [p512] prove that other locations less intrusive upon Hudgens' property rights than picketing inside the mall were either unavailable or ineffective," 501 F.2d at 169, and that the Board's General Counsel had met that burden in this case.

In this Court, the petitioner Hudgens continues to urge that Babcock & Wilcox Co. is the controlling precedent, and that, under the criteria of that case, the judgment of the Court of Appeals should be reversed. The respondent union agrees that a statutory standard governs, but insists that, since the § 7 activity here was not organizational as in Babcock, but picketing in support of a lawful economic strike, an appropriate accommodation of the competing interests must lead to an affirmance of the Court of Appeals' judgment. The respondent Board now contends that the conflict between employee picketing rights and employer property rights in a case like this must be measured in accord with the commands of the First Amendment, pursuant to the Board's asserted understanding of Lloyd Corp. v. Tanner, supra, and that the judgment of the Court of Appeals should be affirmed on the basis of that standard.


As the above recital discloses, the history of this litigation has been a history of shifting positions on the part of the litigants, the Board, and the Court of Appeal. It has been a history, in short, of considerable confusion, engendered at least in part by decisions of this Court that intervened during the course of the litigation. In the present posture of the case, the most basic question is whether the respective rights and liabilities of the parties are to be decided under the criteria of the National Labor Relations Act alone, under a First Amendment standard, or under some combination of the two. It is to that question, accordingly, that we now turn. [p513]

It is, of course, a commonplace that the constitutional guarantee of free speech is a guarantee only against abridgment by government, federal or state. See Columbia Broadcasting System, Inc. v. Democratic National Comm., 412 U.S. 94. Thus, while statutory or common law may in some situations extend protection or provide redress against a private corporation or person who seeks to abridge the free expression of others, no such protection or redress is provided by the Constitution itself.

This elementary proposition is little more than a truism. But even truisms are not always unexceptionably true, and an exception to this one was recognized almost 30 years ago in Marsh v. Alabama, 326 U.S. 501. In Marsh, a Jehovah's Witness who had distributed literature without a license on a sidewalk in Chickasaw, Ala., was convicted of criminal trespass. Chickasaw was a so-called company town, wholly owned by the Gulf Shipbuilding Corp. It was described in the Court's opinion as follows:

Except for [ownership by a private corporation] it has all the characteristics of any other American town. The property consists of residential buildings, streets, a system of sewers, a sewage disposal plant and a "business block" on which business places are situated. A deputy of the Mobile County Sheriff, paid by the company, serves as the town's policeman. Merchants and service establishments have rented the stores and business places on the business block and the United States uses one of the places as a post office from which six carriers deliver mail to the people of Chickasaw and the adjacent area. The town and the surrounding neighborhood, which can not be distinguished from the Gulf property by anyone not familiar with the property lines, are thickly [p514] settled, and according to all indications the residents use the business block as their regular shopping center. To do so, they now, as they have for many years, make use of a company-owned paved street and sidewalk located alongside the store fronts in order to enter and leave the stores and the post office. Intersecting company-owned roads at each end of the business block lead into a four-lane public highway which runs parallel to the business block at a distance of thirty feet. There is nothing to stop highway traffic from coming onto the business block and upon arrival a traveler may make free use of the facilities available there. In short, the town and its shopping district are accessible to and freely used by the public in general and there is nothing to distinguish them from any other town and shopping center except the fact that the title to the property belongs to a private corporation.

Id. at 502-503.

The Court pointed out that, if the "title" to Chickasaw had

belonged not to a private but to a municipal corporation and had appellant been arrested for violating a municipal ordinance rather than a ruling by those appointed by the corporation to manage a company town it would have been clear that appellant's conviction must be reversed.

Id. at 504. Concluding that Gulf's "property interests" should not be allowed to lead to a different result in Chickasaw, which did "not function differently from any other town," id. at 506 508, the Court invoked the First and Fourteenth Amendments to reverse the appellant's conviction.

It was the Marsh case that, in 1968 provided the foundation for the Court's decision in Amalgamated Food Employees Union v. Logan Valley Plaza, 391 U.S. 308. That case involved peaceful picketing within a large [p515] shopping center near Altoona, Pa. One of the tenants of the shopping center was a retail store that employed a wholly nonunion staff. Members of a local union picketed the store, carrying signs proclaiming that it was nonunion and that its employees were not receiving union wages or other union benefits. The picketing took place on the shopping center's property in the immediate vicinity of the store. A Pennsylvania court issued an injunction that required all picketing to be confined to public areas outside the shopping center, and the Supreme Court of Pennsylvania affirmed the issuance of this injunction. This Court held that the doctrine of the Marsh case required reversal of that judgment.

The Court's opinion pointed out that the First and Fourteenth Amendments would clearly have protected the picketing if it had taken place on a public sidewalk:

It is clear that, if the shopping center premises were not privately owned, but instead constituted the business area of a municipality, which they to a large extent resemble, petitioners could not be barred from exercising their First Amendment rights there on the sole ground that title to the property was in the municipality. Lovell v. Griffin, 303 U.S. 444 (1938); Hague v. CIO, 307 U.S. 496 (1939); Schneider v. State, 308 U.S. 147 (1939); Jamison v. Texas, 318 U.S. 413 (1943). The essence of those opinions is that streets, sidewalks, parks, and other similar public places are so historically associated with the exercise of First Amendment rights that access to them for the purpose of exercising such rights cannot constitutionally be denied broadly and absolutely.

391 U.S. at 315.

The Court's opinion then reviewed the Marsh case in detail, emphasized the similarities between the business [p516] block in Chickasaw, Ala., and the Logan Valley shopping center, and unambiguously concluded:

The shopping center here is clearly the functional equivalent of the business district of Chickasaw involved in Marsh.

391 U.S. at 318. Upon the basis of that conclusion, the Court held that the First and Fourteenth Amendments required reversal of the judgment of the Pennsylvania Supreme Court.

There were three dissenting opinions in the Logan Valley case, one of them by the author of the Court's opinion in Marsh, Mr. Justice Black. His disagreement with the Court's reasoning was total:

In affirming petitioners' contentions, the majority opinion relies on Marsh v. Alabama, supra, and holds that respondents' property has been transformed to some type of public property. But Marsh was never intended to apply to this kind of situation. Marsh dealt with the very special situation of a company-owned town, complete with streets, alleys, sewers, stores, residences, and everything else that goes to make a town. . . . I can find very little resemblance between the shopping center involved in this case and Chickasaw, Alabama. There are no homes, there is no sewage disposal plant, there is not even a post office on this private property which the Court now considers the equivalent of a "town."

391 U.S. at 330-331 (footnote omitted).

The question is, under what circumstances can private property be treated as though it were public? The answer that Marsh gives is when that property has taken on all the attributes of a town, i.e., "residential buildings, streets, a system of sewers, a sewage disposal plant and a ‘business block' on which business places are situated."

326 U.S. at 502. I [p517] can find nothing in Marsh which indicates that, if one of these features is present, e.g., a business district, this is sufficient for the Court to confiscate a part of an owner's private property and give its use to people who want to picket on it.

Id. at 332.

To hold that store owners are compelled by law to supply picketing areas for pickets to drive store customers away is to create a court-made law wholly disregarding the constitutional basis on which private ownership of property rests in this country. . . .

Id. at 332-333.

Four years later, the Court had occasion to reconsider the Logan Valley doctrine in Lloyd Corp. v. Tanner, 407 U.S. 551. That case involved a shopping center covering some 50 acres in downtown Portland, Ore. On a November day in 1968, five young people entered the mall of the shopping center and distributed handbills protesting the then ongoing American military operations in Vietnam. Security guards told them to leave, and they did so, "to avoid arrest." Id. at 556. They subsequently brought suit in a Federal District Court, seeking declaratory and injunctive relief. The trial court ruled in their favor, holding that the distribution of handbills on the shopping center's property was protected by the First and Fourteenth Amendments. The Court of Appeals for the Ninth Circuit affirmed the judgment, 446 F.2d 545, expressly relying on this Court's Marsh and Logan Valley decisions. This Court reversed the judgment of the Court of Appeals.

The Court in its Lloyd opinion did not say that it was overruling the Logan Valley decision. Indeed, a substantial portion of the Court's opinion in Lloyd was devoted to pointing out the differences between the two cases, noting particularly that, in contrast to the handbilling in Lloyd, the picketing in Logan Valley had been [p518] specifically directed to a store in the shopping center, and the pickets had had no other reasonable opportunity to reach their intended audience. 407 U.S. at 561-567. [n5] But the fact is that the reasoning of the Court's opinion in Lloyd cannot be squared with the reasoning of the Court's opinion in Logan Valley.

It matters not that some Members of the Court may continue to believe that the Logan Valley case was rightly decided. [n6] Our institutional duty is to follow until changed the law as it now is, not as some Members of the Court might wish it to be. And, in the performance of that duty, we make clear now, if it was not clear before, that the rationale of Logan Valley did not survive the Court's decision in the Lloyd case. [n7] Not only did the Lloyd opinion incorporate lengthy excerpts from two of the dissenting opinions in Logan Valley, 407 U.S. at 562-563, 565; the ultimate holding in Lloyd amounted to a total rejection of the holding in Logan Valley:

The basic issue in this case is whether respondents, in the exercise of asserted First Amendment [p519] rights, may distribute handbills on Lloyd's private property contrary to its wishes and contrary to a policy enforced against all handbilling. In addressing this issue, it must be remembered that the First and Fourteenth Amendments safeguard the rights of free speech and assembly by limitations on state action, not on action by the owner of private property used nondiscriminatorily for private purposes only. . . .

407 U.S. at 567.

Respondents contend . . . that the property of a large shopping center is "open to the public," serves the same purposes as a "business district" of a municipality, and therefore has been dedicated to certain types of public use. The argument is that such a center has sidewalks, streets, and parking areas which are functionally similar to facilities customarily provided by municipalities. It is then asserted that all members of the public, whether invited as customers or not, have the same right of free speech as they would have on the similar public facilities in the streets of a city or town.

The argument reaches too far. The Constitution by no means requires such an attenuated doctrine of dedication of private property to public use. The closest decision in theory, Marsh v. Alabama, supra, involved the assumption by a private enterprise of all of the attributes of a state-created municipality and the exercise by that enterprise of semi-social municipal functions as a delegate of the State. In effect, the owner of the company town was performing the full spectrum of municipal powers, and stood in the shoes of the State. In the instant case, there is no comparable assumption or exercise of municipal functions or power.

Id. at 568-569 (footnote omitted). [p520]

We hold that there has been no such dedication of Lloyd's privately owned and operated shopping center to public use as to entitle respondents to exercise therein the asserted First Amendment rights. . . .

Id. at 570.

If a large self-contained shopping center is the functional equivalent of a municipality, as Logan Valley held, then the First and Fourteenth Amendments would not permit control of speech within such a center to depend upon the speech's content. [n8] For while a municipality may constitutionally impose reasonable time, place, and manner regulations on the use of its streets and sidewalks for First Amendment purposes, see Cox v. New Hampshire, 312 U.S. 569; Poulos v. New Hampshire, 345 U.S. 395, and may even forbid altogether such use of some of its facilities, see Adderley v. Florida, 385 U.S. 39, what a municipality may not do under the First and Fourteenth Amendments is to discriminate in the regulation of expression on the basis of the content of that expression, Erznoznik v. City of Jacksonville, 422 U.S. 205.

[A]bove all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content

Police Dept. of Chicago v. Mosley, 408 U.S. 92, 95. [n9] It conversely follows, therefore, that, if the respondents in the Lloyd case did not have a First Amendment right to enter that shopping center to distribute handbills concerning Vietnam, then the pickets in the present case did not have a First Amendment [p521] right to enter this shopping center for the purpose of advertising their strike against the Butler Shoe Co.

We conclude, in short, that, under the present state of the law, the constitutional guarantee of free expression has no part to play in a case such as this.


From what has been said, it follows that the rights and liabilities of the parties in this case are dependent exclusively upon the National Labor Relations Act. Under the Act, the task of the Board, subject to review by the courts, is to resolve conflicts between § 7 rights and private property rights, "and to seek a proper accommodation between the two." Central Hardware Co. v. NLRB, 407 U.S. at 543. What is "a proper accommodation" in any situation may largely depend upon the content and the context of the § 7 rights being asserted. The task of the Board and the reviewing courts under the Act, therefore, stands in conspicuous contrast to the duty of a court in applying the standards of the First Amendment, which requires, "above all else," that expression must not be restricted by government "because of its message, its ideas, its subject matter, or its content."

In the Central Hardware case, and earlier in the case of NLRB v. Babcock & Wilcox Co., 351 U.S. 105, the Court considered the nature of the Board's task in this area under the Act. Accommodation between employees' § 7 rights and employers' property rights, the Court said in Babcock & Wilcox, "must be obtained with as little destruction of one as is consistent with the maintenance of the other." 351 U.S. at 112.

Both Central Hardware and Babcock & Wilcox involved organizational activity carried on by nonemployees on the employers' property. [n10] The context of the § 7 [p522] activity in the present case was different in several respects which may or may not be relevant in striking the proper balance. First, it involved lawful economic strike activity, rather than organizational activity. See Steelworkers v. NLRB, 376 U.S. 492, 499; Bus Employees v. Missouri, 374 U.S. 74, 82; NLRB v. Erie Resistor Corp., 373 U.S. 221, 234. Cf. Houston Insulation Contractors Assn. v. NLRB, 386 U.S. 664, 668-669. Second, the § 7 activity here was carried on by Butler's employees (albeit not employees of its shopping center store), not by outsiders. See NLRB v. Babcock & Wilcox Co., supra at 111-113. Third, the property interests impinged upon in this case were not those of the employer against whom the § 7 activity was directed, but of another. [n11]

The Babcock & Wilcox opinion established the basic objective under the Act: accommodation of § 7 rights and private property rights "with as little destruction of one as is consistent with the maintenance of the other." [n12] The locus of that accommodation, however, may fall at differing points along the spectrum depending on the nature and strength of the respective § 7 rights and private property rights asserted in any given context. In each generic situation, the primary responsibility for making this accommodation must rest with the Board in the first instance. See NLRB v. Babcock & Wilcox, supra at 112; cf. NLRB v. Erie Resistor Corp., supra at 235-236; [p523] NLRB v. Truckdrivers Union, 353 U.S. 87, 97. "The responsibility to adapt the Act to changing patterns of industrial life is entrusted to the Board." NLRB v. Weingarten, Inc., 420 U.S. 251, 266.

For the reasons stated in this opinion, the judgment is vacated and the case is remanded to the Court of Appeals with directions to remand to the National Labor Relations Board so that the case may be there considered under the statutory criteria of the National Labor Relations Act alone.

It is so ordered.

MR. JUSTICE STEVENS took no part in the consideration or decision of this case.

1. The Butler warehouse was not located within the North DeKalb Shopping Center.

2. Section 7, 29 U.S.C. § 157 provides:

Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 158(a)(3) of this title.

3. Hudgens v. Local 1, Retail, Wholesale & Dept. Store Union, 192 N.L.R.B. 671. Section 8(a)(1) makes it an unfair labor practice for "an employer" to "restrain, or coerce employees" in the exercise of their § 7 rights. While Hudgens was not the employer of the employees involved in this case, it seems to be undisputed that he was an employer engaged in commerce within the meaning of §§ 2(6) and (7) of the Act, 29 U.S.C. §§ 152(6) and (7). The Board has held that a statutory "employer" may violate § 8(a)(1) with respect to employees other than his own. See Austin Co., 101 N.L.R.B. 1257, 1258-1259. See also § 2(13) of the Act, 29 U.S.C. § 152(13).

4. Hudgens v. Local 315, Retail, Wholesale & Dept. Store Union, 205 N.L.R.B. 628.

5. Insofar as the two shopping centers differed as such, the one in Lloyd more closely resembled the business section in Chickasaw, Ala.:

The principal differences between the two centers are that the Lloyd Center is larger than Logan Valley, that Lloyd Center contains more commercial facilities, that Lloyd Center contains a range of professional and nonprofessional services that were not found in Logan Valley, and that Lloyd Center is much more intertwined with public streets than Logan Valley. Also, as in Marsh, supra, Lloyd's private police are given full police power by the city of Portland, even though they are hired, fired, controlled, and paid by the owners of the Center. This was not true in Logan Valley.

407 U.S. at 575 (MARSHALL, J., dissenting).

6. See id. at 570 (MARSHALL, J., dissenting).

7. This was the entire thrust of MR. JUSTICE MARSHALL's dissenting opinion in the Lloyd case. See id. at 584.

8. MR. JUSTICE WHITE clearly recognized this principle in his Logan Valley dissenting opinion. 391 U.S. at 339.

9. The Court has in the past held that some expression is not protected "speech" within the meaning of the First Amendment. Roth v. United States, 354 U.S. 476"]354 U.S. 476; 354 U.S. 476; Chaplinsky v. New Hampshire, 315 U.S. 568.

10. A wholly different balance was struck when the organizational activity was carried on by employees already rightfully on the employer's property, since the employer's management interests, rather than his property interests, were there involved. Republic Aviation Corp. v. NLRB, 324 U.S. 793. This difference is "one of substance." NLRB v. Babcock & Wilcox Co., 351 U.S. at 113.

11. This is not to say that Hudgens was not a statutory "employer" under the Act. See n. 3, supra.

12. 351 U.S. at 112. This language was explicitly reaffirmed as stating "the guiding principle" in Central Hardware Co. v. NLRB, 407 U.S. 539, 544.